**Exhibit10.13**

 

DLJ Merchant Banking III,Inc.

Eleven Madison Avenue

New York, NY  10010

 
|   | March 24, 2004 |
|--------|----------------|

 

PRIVATE AND CONFIDENTIAL

 

Jostens, Inc.

5501 American BoulevardMinneapolis, Minnesota 55437

Attention:  Robert Buhrmaster

 

Ladies and Gentlemen:

 

This letter agreement (as amended from time to time,this “Agreement”), by and among Jostens, Inc. (the “Company”),and DLJ Merchant Banking III, Inc. (“DLJMB”; and the Company and DLJMBare collectively referred to as the “Parties”), amends and restates in itsentirety that certain letter agreement dated as of July 29, 2003 between theParties, pursuant to which the Company engaged DLJMB to undertake certainmonitoring services (the “Services”) on the Company’s behalf.

 

Ascompensation for the Services, the Company agrees:

 

(i)to pay DLJMB an annual financial advisory retainer of $1,000,000, payable inequal quarterly installments on the first business day of each calendar quarterbeginning on the date hereof (for a pro rated amount in respect of the period fromthe date hereof through March 31, 2004) and continuing through the date oftermination or expiration of this Agreement (if payable upon termination ofthis Agreement, such final installment to be paid on the effective date of suchtermination and prorated for any final period consisting of less than ninety(90) days);

 

(ii)to provide DLJMB with a credit beginning on the date hereof and continuingthrough the date of termination or expiration of this Agreement in an annualamount equal to $500,000 (the “Credit”), which Credit shall be appliedsolely to offset DLJMB’s payment obligations under that certain Time-SharingAgreement, dated as of March 15, 2004, by and among the Parties, and whichunused portion of such Credit shall expire on December 31 of each year andshall not be carried forward; and

 

(iii) to pay and reimburse DLJMB for the reasonable out-of-pocket costs andexpenses, reasonably incurred by DLJMB or its affiliates in connection with (x)the Services and (y) any services provided at the request of the Company byDLJMB or members of the Company’s Board of Directors designated by DLJMB, andincluding, without limitation, attendance at meetings of the Company’s Board ofDirectors, and the other rights and obligations arising out of the ownership ofshares of capital stock of the Company by DLJMB and its affiliates, including,

 

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withoutlimitation, in each case, (A) fees and disbursements of any independentprofessionals and organizations, including independent accountants, outsidelegal counsel or consultants, (B) costs of any outside services or independentcontractors such as financial printers, couriers, business publications,on-line financial services or similar services, (C) transportation, per diemcosts, word processing expenses or any similar expense not associated with itsordinary operations, and (D) expenses incurred in complying with legalrequirements resulting from the ownership of shares in the Company by itsaffiliates (collectively, the “Out-of-Pocket Expenses”).

 

AsDLJMB has acted and will be acting on your behalf, it is our practice toreceive indemnification and the Company agrees to the indemnification and otherobligations set forth in Annex A attached hereto, which Annex Ais incorporated herein by reference and an integral part hereof.

 

TheCompany acknowledges and agrees that DLJMB has been retained hereunder solelyto provide the Services set forth in this Agreement.  In such capacity, DLJMB shall act as an independent contractor,and any duties of DLJMB arising out of its engagement hereunder shall be owedsolely to the Company.  Subject toapplicable law, nothing in this Agreement shall in any way preclude us or ouraffiliates or their respective partners (both general and limited), officers,directors, employees, agents or representatives from engaging in any businessactivities or from performing services for our or their own account or for theaccount of others, including for companies that may be in competition with thebusiness conducted by the Company.

 

TheCompany shall make available to DLJMB all available financial and otherinformation concerning its business and operations which DLJMB reasonablyrequests and will provide DLJMB with access to the Company’s officers,directors, employees, independent accountants and legal counsel.  In performing its Services, DLJMB shall beentitled to rely without investigation upon all information that is availablefrom public sources as well as all other information supplied to it by or onbehalf of the Company or its advisors and, except as otherwise specificallyagreed to in a writing signed by both parties, shall not in any respect beresponsible for the accuracy or completeness of, or have any obligation toverify, the same or to conduct any appraisal of assets.

 

Noadvice rendered by DLJMB, whether formal or informal, may be disclosed, inwhole or in part, or summarized, excerpted from or otherwise referred towithout DLJMB’s prior written consent. To the extent consistent with legal requirements, all information givento one party of this Agreement (such party the “Recipient Party”) by theother party (the “Providing Party”), including, without limitation, thisAgreement, unless publicly available or otherwise available to the RecipientParty without restriction or breach of any confidentiality agreement, will beheld by the Recipient Party in confidence and will not, without the ProvidingParty’s prior approval, be disclosed to anyone other than the Recipient’sagents and advisors who require such information to perform services for theProviding Party as contemplated by this Agreement (and who agree to use suchinformation only in connection with such services) or used by such person forany purpose other than those contemplated by this Agreement.  Each party

 

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heretoshall be responsible for violations of its respective agents and advisors ofthe obligations set forth herein.

 

ThisAgreement shall be assignable by DLJMB in its sole discretion and shall bebinding on successors and assigns.  ThisAgreement shall be terminable (i) by DLJMB at any time upon thirty (30) days’prior written notice to the Company and (ii) by the Company at any timefollowing the date that DLJMB (together with any investment funds or accountsmanaged or arranged by it) directly or indirectly owns less than 10% of itsinitial common equity investment in the Company; provided, however, that theCompany may not terminate this Agreement prior to July 29, 2008.  Upon any termination of this Agreement,DLJMB will be entitled to prompt reimbursement of all Out-of-PocketExpenses.  The indemnity and otherprovisions contained in Annex A will also remain operative and in fullforce and effect regardless of any termination of this Agreement.

 

ThisAgreement including Annex A attached hereto, incorporates the entireunderstanding of the parties and supersedes all previous agreements withrespect to the subject matter hereof and shall be governed by, and construedand enforced in accordance with, the laws of the State of New York.  This Agreement shall be binding upon andinure to the benefit of the Company, DLJMB, each Indemnified Person (as definedin Annex A attached hereto) and their respective successors and assigns.

 

Theprevailing party in any suit, action or proceeding arising out of or relatingto this Agreement shall be entitled to recover from the non-prevailing partyall of the attorney fees and other expenses the prevailing party may incur insuch suit, action or proceeding and in any subsequent suit to enforce ajudgment.

 

Ifany term, provision, covenant or restriction contained in this Agreement,including Annex A attached hereto, is held by a court of competentjurisdiction or other authority to be invalid, void, unenforceable or againstits regulatory policy, the remainder of the terms, provisions, covenants andrestrictions contained in this Agreement shall remain in full force and effectand shall in no way be affected, impaired or invalidated.

 

ThisAgreement may be executed by one or more parties to this Agreement or anynumber of separate counterparts, and all of said counterparts taken togethershall be deemed to constitute one and the same instrument.

 

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After reviewing this letter,please confirm that the foregoing is in accordance with your understanding bysigning and returning to me the duplicate of this Agreement attached hereto,whereupon it shall be our binding Agreement.

 

 
|   | Very  truly yours,              |
|--------|---------------------------------|
|   |                            |
|   | DLJ MERCHANT BANKING  III, INC. |
|   |                            |
|   | By:                             | /s/ David Wittels |   |
|   |                            | Name: David Wittels |
|   |                            | Title:  Managing Director |

 

 

ACCEPTED ANDAGREED TO AS OF THE DATE FIRST WRITTEN ABOVE

 

 
| JOSTENS, INC. |
|---------------|
|          |
| By:           | /s/ Robert C.  Buhrmaster |   |
|          | Name:  Robert C. Buhrmaster |
|          | Title:  Chairman of the Board and CEO |

 

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ANNEX A

 

This Annex A is apart of and is incorporated into that certain letter agreement (together, the “Agreement”)dated March 24, 2004 by and between Jostens, Inc. (the “Company”) andDLJ Merchant Banking III, Inc. (“DLJMB”).

 

The Company will indemnifyand hold harmless DLJMB and its affiliates, and the respective directors,officers, agents and employees of DLJMB and its affiliates (other than theCompany)  (DLJMB and each such entity orperson, an “Indemnified Person”), from and against any losses, claims,damages, judgments, assessments, costs and other liabilities  (collectively “Liabilities”), andwill reimburse each Indemnified Person for all fees and expenses (including thereasonable fees and expenses of counsel) (collectively, “Expenses”) asthey are incurred in investigating, preparing, pursuing or defending any claim, action, proceeding or investigation,whether or not in connection with pending or threatened litigation and whether or not any Indemnified Person  is a party (collectively, “Actions”),arising out of or in connection with advice or services rendered or to berendered by any Indemnified Person pursuant to this Agreement, the transactionscontemplated hereby or any Indemnified Person’s actions or inactions inconnection with any such advice, services or transactions; provided thatthe Company will not be responsible for any Liabilities or Expenses of anyIndemnified Person that are determined by a judgment of a court of competentjurisdiction which is no longer subject to appeal or further review to haveresulted solely from such Indemnified Person’s gross negligence or willfulmisconduct in connection with any of the advice, actions, inactions or servicesreferred to above.  The Company alsoagrees to reimburse each Indemnified Person for all Expenses as they areincurred in connection with enforcing such Indemnified Person’s rights underthis Agreement (including, without limitation, its rights under this Annex A).

 

Upon receipt by anIndemnified Person of actual notice of an Action against such IndemnifiedPerson with respect to which indemnity may be sought under this Agreement, suchIndemnified Person shall promptly notify the Company in writing; providedthat failure so to notify the Company shall not relieve the Company from anyliability which the Company may have on account of this indemnity or otherwise,except to the extent the Company shall have been materially prejudiced by suchfailure.  The Company shall, ifrequested by DLJMB, assume the defense of any such Action including theemployment of counsel reasonably satisfactory to DLJMB.  Any Indemnified Person shall have the rightto employ separate counsel in any such action and participate in the defensethereof, but the fees and expenses of such counsel shall be at the expense ofsuch Indemnified Person, unless:  (i)the Company has failed promptly to assume the defense and employ counsel or(ii) the named parties to any such Action (including any impleaded parties) includesuch Indemnified Person and the Company, and such Indemnified Person shall havebeen advised by counsel that there may be one or more legal defenses availableto it which are different from or in addition to those available to theCompany; provided that the Company shall not in such event beresponsible hereunder for the fees and expenses of more than one firm ofseparate counsel in connection with any Action in the same jurisdiction, inaddition to any local counsel.  TheCompany shall not be liable for any settlement of any Action effected withoutits written consent.  In addition, theCompany will not, without prior written

 

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consent of DLJMB, settle, compromise orconsent to the entry of any judgment in or otherwise seek to terminate anypending or threatened Action in respect of which indemnification orcontribution may be sought hereunder (whether or not any Indemnified Person isa party thereto) unless such settlement, compromise, consent or terminationincludes an unconditional release of each Indemnified Person from allLiabilities arising out of such Action.

 

In the event the foregoingindemnity is unavailable to an Indemnified Person other than in accordance withthis Agreement, the Company shall contribute to the Liabilities and Expenses paidor payable by such Indemnified Person in such proportion as is appropriate toreflect (i) the relative benefits to the Company and its shareholders, on theone hand, and to DLJMB, on the other hand, of the matters contemplated by thisAgreement or (ii) if the allocation provided by the immediately precedingclause is not permitted by the applicable law, not only such relative benefitsbut also the relative fault of the Company, on the one hand, and DLJMB, on theother hand, in connection with the matters as to which such Liabilities orExpenses relate, as well as any other relevant equitable considerations; providedthat in no event shall the Company contribute less than the amount necessary toensure that all Indemnified Persons, in the aggregate, are not liable for anyLiabilities and Expenses in excess of the amount of fees actually received byDLJMB pursuant to the Agreement.  Forpurposes of this paragraph, the relative benefits to the Company and itsshareholders, on the one hand, and to DLJMB, on the other hand, of the matterscontemplated by the Agreement shall be deemed to be in the same proportion as(a) the total value paid or contemplated to be paid or received or contemplatedto be received by the Company or the Company’s shareholders, as the case maybe, in the transaction or transactions that are within the scope of theAgreement, whether or not any such transaction is consummated, bears to (b) thefees paid or to be paid to DLJMB under the Agreement.

 

The Company also agrees thatno Indemnified Person shall have any liability (whether direct or indirect, incontract or tort or otherwise) to the Company for or in connection with adviceor services rendered or to be rendered by any Indemnified Person pursuant tothis Agreement, the transactions contemplated hereby or any IndemnifiedPerson’s actions or inactions in connection with any such advice, services ortransactions except for Liabilities (and related Expenses) of the Company thatare determined by a judgment of a court of competent jurisdiction which is nolonger subject to appeal or further review to have resulted solely from suchIndemnified Person’s gross negligence or willful misconduct in connection withany such advice, actions, inactions or services.

 

The Company’s obligationshereunder shall be in addition to any rights that any Indemnified Person mayhave at common law or otherwise. The Company acknowledges that in connectionwith the services provided under the Agreement, DLJMB has acted and will beacting as an independent contractor and not in any other capacity with dutiesowing solely to the Company.  ThisAgreement shall be governed by and construed in accordance with the laws of theState of New York, applicable to contracts made and to be performed thereinand, in connection therewith, the parties hereto consent to the exclusivejurisdiction of the Supreme Court of the State of New York sitting in New

 

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York County or the United States DistrictCourt for the Southern District of New York and the respective appellate courtsthereof.  Notwithstanding the foregoing,solely for the purpose of enforcing the Company’s obligations hereunder, theCompany consents to personal jurisdiction, service and venue in any courtproceeding in which any claim subject to this Agreement is brought by oragainst any Indemnified Person.  DLJMBHEREBY AGREES, AND THE COMPANY HEREBY AGREES ON ITS OWN BEHALF AND, TO THEEXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY HOLDERS, TO WAIVEANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTER-CLAIM OR ACTIONARISING OUT OF THE ENGAGEMENT, DLJMB’S PERFORMANCE THEREOF OR THIS AGREEMENT.

 

The reimbursement, indemnityand contribution obligations of the Company set forth herein shall apply to anymodification of this Agreement and shall remain in full force and effectregardless of any termination of, or the completion of any Indemnified Person’sservices under or in connection with, this Agreement.

 

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